R v Salgado

The offender's case

1. The offender tendered a bundle of documents which became Ex 1.1 to 1.11.
2. Exhibit 1.1 is a report from Mr N Ballardie, consultant psychologist, dated 20 April 2020. The report set out in some detail the offender's family, social, education and work history. He is one of four siblings and comes from a supportive family background. The author took a history that after a relationship breakdown in November 2018, the offender became increasingly depressed and suicidal. In early 2020, the offender's grandmother, who lived in Peru, was admitted to hospital as an emergency admission. The offender was close to his grandmother and insisted on going to Peru to see her.
3. After leaving school after year 11, the offender worked for Foxtel in installations for approximately two years. In August 2019, he started working for an event hire company as an installer, however, he left there prior to travelling to Chile to see his grandmother.
4. The author noted that the offender first tried cannabis when he was 17 years of age, but discontinued it. He tried cocaine when he was 18 years of age and consumed it weekly with friends.
5. Upon testing, the author noted a diagnosis of a Major Depressive Disorder, together with a generalised Anxiety Disorder.
6. The offender had reported an increase in symptoms of his mental conditions in the period just prior to him being charged with the index offence. The author opined, "his young age (19 years at the time), lack of emotional maturity and incomplete brain development" impacted upon his functioning, behaviour and choices whilst in company.
7. The report was clearly prepared to support his bail application in April 2020. It went on to outline the proposed mental health treatment plan for the offender if granted bail, a plan that subsequently was put in place.
8. Exhibit 1.2 was an updated report from Mr Ballardie dated 10 December 2020. It confirmed that he had seen the offender on four occasions since his release on bail and the offender was responding positively to interventions. He commenced anti-depressant medication in May 2020, but ceased it after one month on the recommendation of his GP because of negative side‑effects.
9. The offender had also completed eight sessions of the SMART Recovery Online Program through Odyssey House and had benefitted from that program. He had been abstinent from prohibited drugs since New Year's Eve 2019 and had not interacted with any people he was previously taking drugs with. When tested on 3 December 2020, the offender scored in the severe range for depression and anxiety and the moderate range for stress. He still had problems sleeping and had nightmares about his incarceration and the threats he experienced there.
10. Following his release on bail, he had formed a relationship and had also obtained employment, which was terminated following an injury to his back.
11. The offender had acknowledged the serious manner in which his criminal conduct caused harm in the community. He acknowledged he was wrong to have committed the offence and regretted his behaviour. This reflected that he was taking responsibility for his actions, and he did not attempt to justify or minimise his offence in any way.
12. Mr Ballardie opined that, given his pre-existing mental conditions, going back into custody will cause the offender psychological distress and his overall mental condition is likely to deteriorate. He would further suffer hardship in prison, over and above the ordinary hardship experienced by other inmates. He further opined that incarceration was unlikely to reduce his risk of re‑offending, and that he would not receive in custody the specialised treatment and support he needs and could receive in the community. Finally, provided the offender remained abstinent from prohibited drugs and engages in ongoing counselling, the author opined that he no longer represented a danger to the community.
13. Exhibit 1.2 is a letter from Odyssey House confirming the offender has completed a mental health recovery stage 1 course, together with a SMART recovery online course.
14. Exhibit 1.3 is an offer of employment from Labour Revolution to the offender dated 28 September 2020.
15. Exhibits 1.4 to 1.11 comprise character references from the offender's parents, together with various family friends. Without minimising the content of those testimonials, they set out in some detail that the offender comes from a loving and supportive family who have done well since they arrived in Australia from Peru in 1996. The testimonials set out that clearly this offending was out of character for the offender, who had accepted full responsibility for his criminal conduct and was entirely remorseful for it, and would be unlikely to ever offend again. He now accepted full responsibility for his actions and had progressed in his rehabilitation.
16. Exhibit 2 is a letter of apology written by the offender to the court. It recorded that on the day of his arrest, when stopped by border security, he felt scared and horrified and realised that he had made the "single most horrible decision that will forever haunt me". The offender stated that he had learnt that his actions were completely and utterly wrong, and that he believed he would never re-offend. He recorded incidents of violence and drug taking in custody which he described as "the most horrifying world". The offender also acknowledged that he would be going back to gaol and that he understood the consequences of his actions.
17. The offender stated that he had been able to complete the SMART Recovery sessions online and also receive treatment for his mental health. He had arranged with Mr Ballardie to continue his treatment once he went back into gaol. He also stated that he was able work whilst on bail and eventually wanted to start a career in engineering or construction.
18. The offender was particularly ashamed that he hurt his family, and in particular his mother, by his offending, and stated that he was truly sorry for everything that he had done.

The Crown submissions

1. The Crown relied on a detailed written outline of submissions, setting out well established general principles for sentencing for Commonwealth offences that are not in issue.
2. The Crown submitted that a critical consideration for the court was to determine the offender's role in the drug importation enterprise, having regard to the particular activities undertaken by him in performing that role. As with most matters of this type, the precise nature of the drug supply enterprise and the role of the offender within that enterprise, was not entirely known, however, the court was not obliged to find facts favourable to the offender, or to accept his version of events.
3. In assessing the offender's role, the Crown submitted that the court would take into account the following: 1. The offender stated that he had packed his bags himself. 2. The offender knew the specific type of drug and where it was placed in the baggage. 3. There is some limited evidence before the court as to the involvement of other players in the enterprise.
4. The Crown submitted that the offending involved a degree of planning. An inference was available that the offender travelled from Peru with the drugs in his bags and that was the purpose of his visit to that country.
5. The Crown submitted that the degree of planning of the operation was informed by the relative sophistication of the operation, namely, distillation of cocaine in liquid and false packaging, which required a level of skill and knowledge in the extraction of the drug.
6. In all of the circumstances, the role played by this offender would not entitle him to any special degree of leniency, rather, the Crown submitted that he performed an essential role to the enterprise.
7. The Crown referred to Gwardy v R [2020] NSWCCA 62 per Bellew J at [42] - [43] to submit that the offender had helped facilitate and to promote the importation of a significant quantity of a prohibited drug. Further, it was well established that persons who participate in illicit drug trade at any level should expect and receive heavy penalties.
8. Another matter that reflected the objective seriousness of the offending was the amount of pure drug seized was a total of 1819.55 grams. This was only 180 grams below the commercial quantity. Although the quantity of drugs was highly relevant in assessing the objective seriousness, it is not the principal sentencing factor.
9. The Crown further submitted that whilst there was no evidence before the court as to any potential financial reward for this offender, it was a matter of common sense to be inferred that a person who is importing drugs is doing so to profit, relying on R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 at [72].
10. The Crown submitted the maximum penalty of 25 years imprisonment and/or a pecuniary penalty of 5000 penalty units ($1,050,00.00) serves as a yardstick and indicates that the offence is objectively very serious.
11. The Crown submitted that general deterrence is a fundamental consideration when sentencing for drug importation offences. Any sentence imposed must be of such a severity that it will act to deter others from engaging in illicit drug activities of this nature. The Crown also referred to the following passage from R v Nguyen, supra, at [72(g)]: "The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case."
12. The Crown conceded that the offender will receive a discount for the utilitarian benefit of his plea of guilty, which was entered at the first reasonable opportunity. The plea is also relevant on a subjective basis in considering remorse and contrition, although the court was entitled to weigh the fact that the plea was entered as a "recognition of the inevitable" in the face of a strong Crown case.
13. The Crown further conceded that the offender was cooperative with both the ABF and AFP, as outlined above, but did not provide any substantive assistance to the police in terms of information given in respect of where the drugs came from, or further details of the operation itself.
14. The Crown submitted that pursuant to s 16A(2)(k) of the Crimes Act 1914 (Cth), the primary obligation of the court was to "impose a sentence or make an order that is of severity appropriate in all the circumstances of the offence", and to "ensure the person is adequately punished for the offence". In this case, no sentence other than imprisonment was appropriate.
15. The Crown submitted that the lack of prior criminal convictions was not unusual in matters of this kind and would not ordinarily lead to leniency, however, as the offender was 19 years of age at the time, the Crown conceded that the courts generally give more weight to rehabilitation and less weight to general deterrence and denunciation, based on the offender's youth, together with his cognitive, emotional and/or physiological immaturity. Notwithstanding that, the Crown submitted that the youth of an offender has been accorded less significance in sentencing for serious drug offences, relying on R v Ceissman [2001] NSWCCA 73, at [34] - [35]; Kao v R [2019] VSCA 84, at [61] - [63].
16. The Crown noted that the offender had spent 63 days in custody prior to his release on bail.
17. Finally, the Crown provided, by way of a schedule to his outline of submissions, a number of comparable cases to be considered as yardsticks in terms of the sentencing principles to be derived therefrom, acknowledging that sentencing was not a numerical exercise.
18. In his oral submissions, the Crown conceded that the offender had demonstrated remorse for his offending, but some caution should be exercised in assessing the weight to be given to the reports of the psychologist, Mr Ballardie. Given that the offender had acknowledged the gravity and wrongfulness of his offending, taken together with his youth, meant that the importance of general deterrence in the sentencing here was somewhat diminished. Specific deterrence was, however, still important.
19. The Crown acknowledged that the offender had made some progress with his rehabilitation and submitted that any sentence should be conditional upon the opportunity for such rehabilitation to continue.
20. The Crown acknowledged that the offender's youth was a strong subjective circumstance to be taken into account on sentencing. Whilst a finding of special circumstances was not required pursuant to Commonwealth sentencing legislation, appropriate adjustment could be made to the period of time to be served in custody.
21. The Crown submitted that the court should avoid characterising the offender's criminal conduct by a label such as "courier", because all players in a drug operation play a significant role. This particular operation was relatively sophisticated, for example, the packaging of the drugs indicated that it would require some knowledge for their extraction.
22. Finally, the Crown noted that the offender had been very cooperative during his interviews with the ABF and AFP, but ultimately his assistance to authorities was limited.

The offender's submissions

1. Learned Counsel for the offender agreed with the Crown's outline of general principles to be applied in sentencing for Commonwealth offences. The court was informed that, during his release application in April 2020, the offender had acknowledged that he would ultimately be returned to full-time custody. However, a prime consideration in granting bail was to enable him to establish some mode of recognition of his remorse and rehabilitation. In the eight months that followed, it was clear that he had acknowledged significant issues in his life which required addressing, and that he had made substantial progress in addressing his mental health issues.
2. It was conceded that there was no causal nexus between his psychological state and the index offence, however, it was clear that he would benefit from further rehabilitation.
3. It was submitted that the offender's letter of apology indicated his remorse and his reconciliation with family and friends, together with indicating that upon his release he will have the love and support of those around him, together with a capacity to work.
4. Learned counsel submitted that the offender's youth looms large in the sentencing exercise here. The offender was well regarded with no criminal history, and had a supportive and loving family, and was held in high regard by those around him. The court could be confident that he would return to a supportive community.
5. It was submitted that whilst a courier plays a significant role in the drug operation, he was not a moving party in the entrepreneurial and financial organisation of it here. As soon as he realised he was in peril at the airport, he cooperated with authorities. He was characterised as "a willing and foolish mule in a serious operation". However, people of good character were often used for this role so as to avoid detection.
6. It was submitted that his conduct indicated that he was a willing participant until it became clear that he would be searched. Thereafter, he cooperated and allowed an expedient and immediate investigation and judicial process to take place.
7. It was submitted the court should make an order under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSPA") of special circumstances.
8. It was submitted the offender was entitled to a utilitarian discount of 25% on sentence, having facilitated the administration of justice appropriately.
9. A plea was made on behalf of the offender not to impose a crushing sentence, i.e. "one which would induce a feeling of helplessness and despair in the offender, and destroy any reasonable expectation of a useful life after his release".
10. Counsel advocated that any sentence here should be structured in a way which meant that whilst in custody and under supervision, avenues would be available to develop and progress the offender's rehabilitation. This would enable him to move forward upon release to a positive contribution to the community, both in respect of his treatment and employment.

Determination

1. I accept the Crown's submission that the offending here involved a degree of planning, however, I am not satisfied beyond reasonable doubt that the purpose of the offender's travel to Peru was the importation of a border controlled substance. The degree of planning was informed by the relative sophistication of the operation, namely distillation of cocaine into a liquid and false packaging which required a level of skill and knowledge in the extraction of that drug. I also accept the Crown's submission that the offender stated that he had packed his bags himself, that he knew the specific type of drug being imported and where it was placed in his luggage. As a courier, the offender played a significant role in facilitating and promoting the importation of a significant quantity of a border controlled substance, in this case, some 900 times the marketable quantity and just under the commercial quantity for cocaine. It thus constituted very serious offending.
2. I must have regard to the following matters pursuant to s 16A of the Crimes Act 1914 (Cth).

(2)(a) The nature and circumstances of the offence

1. The agreed facts before the court indicate that the offender, as outlined above, played a significant role in facilitating the importation of a significant quantity of border controlled drugs. His criminality must be assessed by reference to the steps taken by him to effect the importation. Without his involvement the importation could not have taken place. As is often the case, the organisation or hierarchy of the entrepreneurial exercise is unknown to the court. Having regard to all of the circumstances, the objective seriousness of the offending was high.

(2)(c) If the offence forms part of the course of conduct consisting of a series of criminal acts of the same or a similar character - that course of conduct.

1. This offence did not form part of the course of conduct consisting of a series of criminal acts, but rather, was a single criminal act. Further, once the offender realised his criminal conduct would be revealed at the airport, he cooperated with both the ABF and AFP.

(2)(d) The personal circumstances of any victim of the offence

1. The importation of border controlled drugs is a pernicious criminal activity which often leads to the dissemination of large amounts of prohibited drugs into the Australian community, doing great harm to that community. No other harm, loss or damage resulted, however, from this importation being detected.

(2)(f) The degree to which the person has shown contrition for the offence

1. I accept that the offender here has shown remorse for his offending criminal conduct and has accepted responsibility for it. He acknowledged to Mr Ballardie the serious manner in which his criminal conduct caused harm to the community and did not attempt to justify or minimise his offence in any way. I also accept the offender's letter of apology (Ex 2), that he has realised the error of his ways and has accepted responsibility for his conduct.

(2)(g) If the person has pleaded guilty to the charge in respect of the offence - that fact

1. The offender has pleaded guilty at an early stage to the charge and is entitled to a 25% utilitarian discount on sentence.

(2)(h) The degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences

1. The offender cooperated with the ABF and AFP and in doing so facilitated the course of justice by allowing an expedient and immediate investigation. His cooperation, however, was in the face of a strong Crown case and did not extend to providing further information to authorities about other persons involved.

(2)(j) The deterrent effect that any sentence or order under consideration may have on the person

1. Specific deterrence is important in the sentencing process here in that the offender, who previously had no criminal convictions, must understand the serious nature of his criminal conduct and the potential harm in the wider community brought about by it.

(2)(ja) The deterrent effect that any sentence or order under consideration may have on other persons

1. General deterrence is well recognised as an important and relevant factor in sentencing for importation of border controlled substances offences. Such offences are difficult to detect, and result in grave social consequences. A clear message must be sent to the community that Parliament has proscribed very lengthy maximum penalties and that the courts will impose condign punishment for such offences. Thus, the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment by imposition of significant custodial sentences.

(2)(m) The character, antecedents, age, means and physical or mental condition of the person

1. The offender was 19 years of age at the time of the offence and was previously a person of good character. Whilst his youth is a most relevant matter to be taken into account on sentence, given the planning and sophistication involved in the importation, it could not be described as immature offending. However, the courts do recognise that emotional maturity and impulse control develop progressively during adolescence and early adulthood, up until the mid-20's. Thus, youth is a material factor in sentencing, even for a most serious crime - see Howard v R [2019] NSWCCA 109 at [88]. It is also clear that whilst relevant, youth and previous good character are of less significance in drug trafficking and importation offences as it is often the case that organisers of the drug trade deliberately recruit young people so as to avoid the risk of detection.

(2)(n) The prospects of rehabilitation of the person

1. Given the advances made by the offender in his rehabilitation whilst on bail, I find that the offender has, with the help of his supportive family, excellent prospects of rehabilitation. I also find that the offender is a low risk of re‑offending.
2. Whilst the matters reported by Mr Ballardie must be approached with caution, I accept that the offender has a supportive and loving family, and that he has advanced his rehabilitation whilst on bail. He has completed the Smart Recovery program through Odyssey House, has been abstinent from prohibited drugs and no longer associates with people involved in drugs.

(2)(p) The probable affect that any sentence or order under consideration would have on any of the persons, family or dependants

1. Whilst it is clear that the sentencing of the offender for such a serious drug importation offence will have a salutary effect on his family, that is the inevitable consequence of such offending and is not a relevant factor in sentencing here.
2. Whilst there is no evidence before me as to any potential financial reward to the offender, it is a matter of common sense to be inferred from the agreed facts that the importation of a large marketable quantity of cocaine would be productive of substantial profit to those importing the drugs, including the offender - see R v Nguyen, R v Pham, supra, at [72].
3. I have taken into account the maximum penalty for the offence pursuant to s 307.2 of the Criminal Code (Cth) of 25 years imprisonment and/or a fine of 5000 penalty units. The maximum penalty is a yardstick or guidepost in the sentencing process, against which the subject offending must be assessed by reference to the worst case.
4. Given the seriousness of the criminal conduct here and the maximum penalty proscribed by Parliament, I am satisfied pursuant to s 17A of the Crimes Act 1914 (Cth) that no sentence other than a term of imprisonment is appropriate in all of the circumstances. I have taken into account the offender's youth and previous good character, and that he will endure more onerous conditions than many in the prison population.
5. Having regard to all of the circumstances, the high objective seriousness of the offending and the subjective matters referred to above, together with the utilitarian discount of 25% for his early plea of guilty, his youth and remorse, the appropriate head sentence to be imposed is a period of 4 years and 6 months imprisonment.
6. Pursuant to s 19AB of the Crimes Act 1914 (Cth), I intend to impose a non‑parole period as a minimum period of imprisonment that justice requires the offender to serve, having regard to all of the circumstances. The non‑parole period will be 2 years and 6 months imprisonment. I note that the offender has spent 63 days in custody and the sentence will be backdated to take into account that period of time.

Conclusions and Orders

1. I therefore make the following orders: 1. You are convicted of the offence in Count 3 of import a border controlled substance, namely cocaine, the quantity being a marketable quantity, pursuant to s 307.2 of the Criminal Code (Cth). 2. In respect of that offence, you are sentenced to a term of imprisonment of 4 years and 6 months to commence on 17 December 2020 and to terminate on 16 June 2025. 3. I fix a non-parole period of 2 years and 6 months imprisonment to commence on 17 December 2020 and to expire on 16 June 2023.
2. The effect of the sentencing order I have just made is that you will serve a term of imprisonment for the offence, with a non-parole period of not less than 2 years and 6 months. Upon your release to parole, you will be required to abide by conditions fixed by the Parole Authority. It is in your interest to abide by those conditions, for if you do not, you may be liable to serve the balance of the term of sentence, a period of 2 years.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2021